Checkmate, Hayes?

It is difficult to know what Steven Hayes wants. Sure, he stood in open court and told the judge that he wants to plead guilty to the charges against him, including the capital felonies. It is black letter law that the decision to plead guilty belongs to the client. But is Mr. Hayes also volunteering to be executed? The law is just as clear: we have a presumption in favor of life. Someone seeking to kill themself is presumed incapable of knowing their own interests.

Hayes is charged with kidnapping, rape, murder and a host of other offenses arising from his role in the home invasion that devastated the Petit family in Cheshire 2007. He faces the death penalty for certain of these offenses.

At a competency hearing in New Haven yesterday, the court found Hayes competent. That means he understands the nature of the charges against him and is capable of assisting in his own defense.

Proof in capital cases proceeds in a two-stage proceeding. In the guilt phase, a jury determines whether the defendant did the crime. In the second, penalty phase, the same jury decides whether the defendant should be put to death. It is the only criminal proceeding in Connecticut in which jurors are permitted even to consider punishment. Normally, jurors proceed like moral neuters, simply making a determination of guilt without regard to the consequences.

There is no question that Hayes has the right to plead guilty to the charges against him. A decision to enter a plea is the client's choice. All a lawyer can do is advise. So Hayes can stop the guilt phase in its tracks with a plea. But can he also decide simply to be put to death?

Our law permits anyone to be taken into custody on an emergency certification when they give police probable cause to believe that they are a danger to themselves or others. A person so whisked into custody is taken to a hospital, confined, and subject to a probate proceeding to determine whether they are capable of caring for themselves. A person with active suicidal thoughts is deemed incapable of caring for himself and is deprived of the liberty necessary to kill himself.

So what do we do with Hayes? A judge just found him capable. He can assist in his own defense. Yet, if his intention is to simply say "Kill Me!" then he is a danger to himself and is not capable.

Judge John C. Blue may decide that justice requires acceptance of the guilty plea but that the penalty-phase trial must go forward. No man can rationally submit to his own death, the reasoning goes. Hence, let a jury decide. In this instance, we'd have a grisly show trial. The state would parade its witnesses before jurors to show that the crime was horrible and the man who committed it lacks redeeming qualities. "Kill him," the state would say. "Oh, yes, please do," would be the defense. Of course, in such a case, Hayes' lawyer has a great argument: "Mr. Hayes is not without remorse, ladies and gentlemen. You see, he feels so bad he wants to die"

That would be a mockery of justice.

The most prudent course at this point is to appoint a guardian ad litem for Hayes. He needs a legal representative to provide him with independent legal perspective. Thomas Ullman, Hayes' lawyer, is a great advocate, but he is locked into the fight to save Hayes' life. There may well be a conflict between lawyer and client here. Suppose Hayes really wants to die. Wouldn't Ullman find that objective repugnant and irrational? If so, he'd be obliged to withdraw from the case.

The Hayes case evokes the ghost of Michael Ross. Ross threw in the towel and submitted to death after years of appeals. Hayes is simply jump-starting the game. The issues in Ross and Hayes are, however, identical. Who makes he decision about whether Hayes lives or dies? The state wants Hayes dead. The law presumes such decisions to be irrational. But suppose the state and Hayes want the same thing? Who is irrational now: the state or Steven Hayes?

I say abolish the death penalty. It sickens to watch this spectacle. Steven Hayes has long ago offered to plead guilty in exchange for the state abandoning the plan to kill him. That plea should long ago have been accepted.

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.